UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ H. DENISE STUART, Plaintiff - Appellant,

v. ERICKSON LIVING MANAGEMENT; WIND CREST, Defendants - Appellees. No. 19-1444 (D.C. No. 1:18-CV -01083-PAB-NYM) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MATHESON , and CARSON , Circuit Judges.

________________ _________________ H. Denise Stuart appeals from the di strict court’s order granting summary judgment in favor of Defendants Ericks on Living Management and Wind Crest on her claim of racial discrimi nation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). Exercising jurisdiction unde r 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 21, 2020 Christopher M. Wolpert Clerk of Court2 BACKGROUND In December 2016, Defendants hired Ms. Stuart as a Care Associate for patients suffering from dementia and Alzheime r’s Disease at the Wind Crest facility in Highlands Ranch, Colorado. Her co-wor kers soon began compla ining that she was bossy toward them, unreceptive to feedback, and rude to ward residents and their family members. In March 201 7, she received a written wa rning for failing to adhere to Defendants’ values of respect, caring, te amwork, and excellence. When Ms. Stuart and a co-worker were involved in a verbal altercation two months later, Adam Dickson, Director of Continuing Care, de cided to conduct a performance review “by interviewing both her co-workers and the family members of those residents for whom she cared.” R. Vo l. 1 at 212 (internal quot ation marks omitted). During his evaluation, Mr. Dickson recei ved complaints from a resident’s family members regarding Ms. Stuart’s dem eanor and care for resi dents, as well as complaints from co-workers that she at e food designated for residents and used inappropriate physical force on a resident. Mr. Dickson suspended Ms. Stuart while continuing to investigate. After receiving additional complaints that she refused to assist co-workers in times of need and wa s disrespectful to residents and co-workers, Mr. Dickson concluded Ms. Stuart’s conduct violated Defendants’ policies and standards of conduct and termin ated her in June 2017. Believing Defendants discriminated ag ainst her because she is Black, Ms. Stuart filed a discrimi nation charge with the Equa l Employment Opportunity Commission, which dismissed th e charge and issued a right -to-sue letter. She then3 filed this action pro se, clai ming racial discrimination and retaliation in violation of Title VII. Defendants moved to dismiss the retaliation claim, a nd a magistrate judge recommended granting the motion. Ms. Stuart did not file objections , and the district court accepted the recommendation. 1 Defendants then moved for summary judgment on the discrimination claim. Ms. Stuart did not file a re sponse but, instead, filed her own summary-judgment motion. The ma gistrate judge recommended granting Defendants’ motion and denying Ms. Stuart’s motion. The district court accepted the recommendation over Ms. Stua rt’s objections. Ms. Stuart timely appealed. 2 DISCUSSION “We review the district court’s summary -judgment order de novo, applying the same standard that the dist rict court is to apply.” Doe v. Univ. of Denver , 952 F.3d 1182, 1189 (10th Cir. 2020) (internal quotation marks omitted). A “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matt er of law.” Fed. R. Civ. P. 56(a). “[W]e examine the record and all reasonable inferences that might be drawn from it in the light most fa vorable to the nonmoving party.” Fields v. City of Tulsa , 753 F.3d 1000, 1009 (10th Cir. 2014) (i nternal quotation marks omitted). A party opposing summary judgment, however , may not rely on “[u]nsubstantiated

1 Although the court allowed Ms. Stua rt twenty-one days to amend her complaint and properly plead the retaliation claim, she did not amend her complaint or otherwise attempt to resurrect this claim.

2 We confine our review to the discrimi nation claim, as Ms. Stuart designated only the summary-judgment orde r in her notice of appeal.4 allegations” or “mere speculation, conjecture, or surmise.” Self v. Crum , 439 F.3d 1227, 1230 (10th Cir. 2006) (internal quot ation marks omitted). Ms. Stuart is pro se, and therefore, “we liberally c onstrue [her] filings.” James v. Wadas , 724 F.3d 1312, 1315 (10t h Cir. 2013). But “we will not act as [her] advocate.” Id. “Our rules of appeal require appe llants to sufficiently raise all issues and arguments on which they desire appe llate review in their opening brief.” Clark v. Colbert , 895 F.3d 1258, 1265 ( 10th Cir. 2018) (bracket s and internal quotation marks omitted). “[P]ro se parties [mus t] follow the same rules of procedure,” including filing a brief containing “more than a generalized assertion of error, with citations to supporting authority.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840-41 (10th Ci r. 2005) (internal quotati on marks omitted). “When a pro se litigant fails to comp ly with that rule, we cannot fill the void by crafting arguments and performing the n ecessary legal research.” Id. at 841 (brackets and internal quotation marks omitted). In her opening brief, Ms. Stuart makes the concluso ry assertions, unsupported by citation to the record or legal authority , that she “was falsely accused of elder abuse,” assaulted by a co-worker, subjecte d to disparate treatment and harassment, “compelled to work in a[] hostile environm ent,” and wrongfully terminated. Aplt. Opening Br. at 2. She further states, wit hout explanation, that the district court “failed to notice important facts” and that the “judgement was unf air, unethical, and unconcern (sic).” Id. at 4. She also references thre e exhibits attached to her brief, which consist of two emails she sent to her supervisors regarding incidents with5 co-workers as well a witness statement regarding the verbal altercation that prompted the investigation into her c onduct and job performance. We “will not consider such issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” United States v. Wooten , 377 F.3d 1134, 1145 (10th Cir. 2004) (internal quotation marks omitted). In her reply brief, which largely mirrors her summary judgment motion, Ms. Stuart contends that the proffe red reason for her termination—poor performance—was false, that Defendant s failed to properly investigate the accusations against her, and that five non- Black employees were not disciplined for violating Defendants’ policies. By faili ng to make these arguments in her opening brief and raising them only in her reply brief, Ms. Stuart has waived these arguments. See Anderson v. U.S. Dep’t of Labor , 422 F.3d 1155, 1174 (10th Cir. 2005). In any event, the district court thoroughly addressed th ese claims as part of its analysis under the burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-05 (1973). See generally Crowe v. ADT Sec. Servs., Inc. , 649 F.3d 1189, 1195 (10th Cir. 2011) (noting that “the plainti ff must first establish a prima facie case of discrimination, ” that the burden shifts to the employer to show a “a legitimate, non-discriminatory” reason for the adverse action, and that the burden shifts back to “the plaintif f [to] show that the defenda nt’s proffered rationale is pretextual”). After assuming Ms. Stuart established a prima facie case of discrimination, the court concluded she fa iled to show Defendants’ legitimate, nondiscriminatory reason for her termination— a pattern of poor performance, as shown6 by complaints from both co-workers and rela tives of Wind Crest’s residents—was in any way pretextual. The c ourt specifically found she o ffered no competent evidence to rebut the evidence of poor performan ce or to support her allegation of an inadequate investigation. Moreover, th e court found that the conduct of five nonBlack employees she referenced was not sufficiently similar in severity or frequency to show disparate treatmen t. Finally, the court foun d “Defendants did discipline and/or terminate employees of varied race (e.g., Caucasian or Hispanic) for conduct like Ms. Stuart’s.” R. Vol. 1 at 222. Ms. Stuart has not conteste d the district court’s findi ngs or analysis, and “we will not question the reasoning of a district court unless an appellant actually argues against it,” Clark , 895 F.3d at 1265 (brackets and in ternal quotation marks omitted). Accordingly, she has failed to show the court erred in granting Defendants’ motion for summary judgment and denying her cross-motion for summary judgment. CONCLUSION The district court’s judgment is affirm ed. We deny Ms. Stuart’s motion for leave to proceed in forma pauperis due to the lack “of a reasoned, nonfrivolous argument on the law and facts.” Rolland v. Primesource Staffing, L.L.C. , 497 F.3d 1077, 1079 (10t h Cir. 2007).

Entered for the Court
Mary Beck Briscoe Circuit Judge